sábado, 22 de octubre de 2016

The rift between wording and practice becomes understandable in light of the case law of international courts.

Russia’s Military Exercises and the Prohibition on the Threat of Force

by Szymon Zaręba

Staging military exercises which include certain offensive elements or deployment of ballistic missiles in direct proximity of a border of another state do not constitute a violation of the prohibition of the threat of force stipulated in Article 2, Para. 4 of the Charter of the United Nations. However, their legality could be questioned if they were accompanied by a demand of a certain conduct by other entities. It would be difficult to prove that Russian exercises held close to the borders of the members of NATO constitute a violation of said prohibition or any other treaty norms. Still, NATO member states should jointly assess Russian actions as to their compliance with the legal prohibition of threats of force as an instrument of the foreign policy.

The increased tension in relations between NATO states and Russia in the last few years has manifested itself in part in the form of Russia’s controversial decisions to redeploy ballistic missiles closer to NATO territory and increase the frequency and scale of its military manoeuvres. Publicly available information indicates the number of troops participating in these exercises is growing and reveals the close proximity of these provocative Russian actions to objects (e.g., airplanes) and the territory of members of the Alliance. They also point to concerning offensive elements that have appeared more often in the Russian exercise scenarios in which the use of nuclear weapons is envisaged. These factors contribute to an atmosphere of danger. Thus, it seems natural to ask whether these kinds of actions may be interpreted as violations of the norms of international law, specifically those prohibiting the threat of force.
Legal Nature of the Prohibition

Various treaties frame the prohibition of the threat of force, in particular the Charter of the United Nations (UNC) and the founding instruments of regional organisations such as the Organisation of American States (OAS), the African Union (AU), and the Association of Southeast Asian Nations (ASEAN). So far, however, this prohibition has not been reflected in any international agreement that refers to the European continent alone. It was expressed only in a non-legally binding declaration attached to the 1975 Final Act of the Conference on Security and Cooperation in Europe. Neither does it enjoy the status of a rule of customary international law.

Still, the fact remains that both the NATO states and Russia are bound in their relations by Article 2, Para. 4 of the UNC. This provision imposes on all members of the United Nations an obligation to refrain “from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. It is assumed in the judicial decisions and literature of international law that this provision relates to all threats of force regardless of their aim and that the three cases mentioned in the text are only examples.

Due to Russia’s suspension in 2007 of the Treaty on Conventional Armed Forces in Europe (CFE), there are no other treaty norms through which to assess the legality of its actions. Instruments adopted within the framework of the Organization for Security and Cooperation in Europe (OSCE), such as the 2011 Vienna Document on Confidence and Security-Building Measures, do not have any legal status.
International Practice

Threats of force generally do not meet with a firm response from the international organisations established to protect the peace and security on a global or regional scale. They usually become a matter of interest for these relevant institutions only after the actual use of force. Even then, charges of the use of threat are normally considered to be less important than those concerning real actions, or are even completely left aside.

A good example of this is the international reaction to Iraq’s rhetoric starting in July 1990 about launching an attack against Kuwait, combined with demands that the latter cease its encroachment on Iraq’s oil reserves and the concentration of several dozen Iraqi troops on the border between the two states. These actions did not meet with any response from the UN. The Security Council issued its first response to this conflict only when the Iraqi forces began the invasion of Kuwait. What is more, neither this UNresolution nor later ones, mentioned the threats that preceded the attack. One can, therefore, notice a serious discrepancy between the strict wording of the UNC and common practice.


No hay comentarios:

Publicar un comentario